2026:HHC:11129

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 173 of 2008

Reserved on: 07.03.2026

Date of Decision: 09.04.2026

Kailash Chand ...Appellant.

Versus

Deepa Devi & Ors. ...Respondents.

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

Yes

For the Appellant : Mr Raman Jamalta, Advocate.

For the Respondents: Mr Vivek Singh Thakur, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and decree dated 29.12.2007 passed by the learned Additional

District Judge, Fast Track, Kullu (learned Appellate Court) vide

which the judgment and decree dated 19.07.2007 passed by the

learned Civil Judge, Sr. Division, Kullu (learned Trial Court) were

upheld. (Parties shall hereinafter be referred to in the same manner

as they were arrayed before the learned Trial Court for convenience.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiff filed a civil suit before the learned

Trial Court for seeking a declaration that defendant No.1. has no

right to proclaim herself to be the legally wedded wife of the

plaintiff, no marriage as per custom was solemnized between

plaintiff and defendant No.1, and the document produced by the

defendant is forged and fictitious, which is not binding upon the

plaintiff. A consequential relief of permanent prohibitory

injunction for restraining the defendants from visiting the

house of the plaintiff and defendant No.1 from proclaiming

herself as plaintiff’s wife was also sought. It was asserted that

the defendants used to visit the house of Nimo Devi, who had an

inimical relationship with the plaintiff. The defendants asked

the plaintiff and his parents to solemnise a marriage between

the plaintiff and defendant No. 1. The plaintiff did not accept this

proposal. The defendant No.1 started proclaiming herself as the

wife of the plaintiff. She also produced a document showing that

a marriage was solemnised between the plaintiff and her. These

claims are false. Hence, the suit was filed to seek the relief

mentioned above.

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3. The suit was opposed by filing a written statement

taking preliminary objections regarding lack of maintainability,

the suit having not been properly valued for Court fees, and the

plaintiff having concealed the material facts from the Court. The

contents of the plaint were denied on the merits. It was asserted

that the parties are governed by the local agricultural customs of

District Kullu. Defendant No.1 and the plaintiff solemnised a love

marriage. The plaintiff’s parents subsequently performed a

marriage between the plaintiff and defendant No.1 on

04.05.2005 as per the local custom. They put a Thipu (Dupatta)

on the head of defendant No.1 before their deity and organised a

feast for the villagers and their relatives. Defendant No.1 started

residing with the plaintiff in his house as his wife. The plaintiff

maltreated defendant No.1 and turned her out of her

matrimonial home in January 2006. She made a complaint to the

police. The plaintiff compromised the matter with defendant

No.1 in the presence of Pradhan, Gram Panchayat Katrain and

undertook to keep defendant No.1 in his house. Defendant No.2

never visited the house of Nimo Devi or the plaintiff. Therefore,

it was prayed that the suit be dismissed.

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4. A replication denying the contents of the written

statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues

on 03.08.2006: -

1. Whether the plaintiff is entitled to the declaration as

prayed for? OPP.

2. Whether the plaintiff is entitled to the relief of a

permanent prohibitory injunction, as prayed for? OPP.

3. Whether the suit of the plaintiff is not maintainable in the

present form? OPD.

4. Whether the plaintiff has concealed the material facts

from the Court, if so, its effect? OPD.

5. Whether the suit has not been properly valued for the

purposes of court fees and jurisdiction?OPD

6. Whether the defendants are entitled to special costs

under Section 35-A CPC? OPD

7. Relief.

6. The parties were called upon to produce the evidence,

and the plaintiff examined himself (PW1) and Jagan Nath (PW2).

Defendant No.1 examined herself (DW1), Nathu Ram (DW2),

Badri Parkash (DW3) and Subhash Chand (DW4).

7. The learned Trial Court held that the defendants had

failed to prove that the marriage was solemnised as per the

custom of the area. However, the plaintiff and defendant no. 1

resided together, which would make it probable that they were

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married to each other. The document produced on record also

corroborated the version of defendant No.1. The suit was

maintainable and properly valued for Court fees and jurisdiction.

Hence, the learned Trial Court answered issue Nos. 1 to 6 in

negative and dismissed the suit filed by the plaintiff.

8. Being aggrieved by the judgment and decree passed

by the learned Trial Court, the plaintiff filed an appeal, which

was decided by the learned Additional District Judge, Fast Track

Court, Kullu (Learned Appellate Court). Learned Appellate Court

held that, as per the question No.16 of tribal custom, a marriage

could be solemnised by giving meals to the marriage party and

the execution of the agreement. The evidence proved that meals

were provided to the marriage party, and Ganesh Pooja was

performed. Therefore, the marriage was solemnised as per the

custom. This version was also duly corroborated by the

undertaking (Ext.DW3/A) executed by the plaintiff admitting the

relationship between the parties. Cohabitation between a man

and a woman openly leads to an inference of a valid marriage,

and the burden was upon the person denying the marriage to

rebut this presumption. The plaintiff had failed to rebut the

presumption, and his suit was rightly dismissed by the learned

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Trial Court. Hence, the appeal preferred by the plaintiff was

dismissed.

9. Being aggrieved by the judgments and decrees passed

by the learned Courts below, the plaintiff has filed the present

appeal, which was admitted on the following substantial

questions of law on 24.06.2009:-

1.Whether the Courts below erred in holding that there

had been a marriage according to customary law

without proving the same, as the customary law is

not only to be pleaded but is required to be proved

like any other matter?

2.Whether the learned Courts below erred in placing

reliance on Ext.DW3/A, considering the same as

agreement of marriage, especially when the appellant

had denied his signature on the same?

3.Whether the alleged compromise Ext.DW3/A could be

treated as an agreement when it is not signed by both

the parties to the agreement?

4.Whether the learned Courts below misread,

misappreciated both oral and documentary evidence

on record and the findings are based on mere

conjectures and surmises?

10. I have heard Mr Raman Jamalta, learned counsel for

the appellant/plaintiff and Mr Vivek Singh Thakur, learned

counsel for the respondents/defendants.

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11. Mr Raman Jamalta, learned counsel for the

appellant/plaintiff, submitted that the learned Courts below

erred in holding that the marriage was solemnised according to

the customary law. There was no proof of the customary law,

and the requirements provided in answer to Question No.16, as

noticed by the learned Appellate Court, were not fulfilled. The

marriage could not have been solemnised by executing the

document. The presumption regarding the marriage can only be

drawn by long co-habitation and cohabitation for a few months

was not sufficient to raise the presumption. Therefore, he

prayed that the present appeal be allowed and the judgments

and decrees passed by the learned Courts below be set aside. He

relied upon the judgments in S.P.S. Balasubramanyam vs.

Suruttayan @ Andali Padayachi and others (1994) 1 SCC 460,

Ranganath Parmeshwar Panditrao Mali and another vs. Ekna

Gajanan Kulkarni and another (1996) 7 SCC 681 and Madan

Mohan Singh and others vs. Rajni Kant and another (2010) 9 SCC

209 in support of his submission.

12. Mr Vivek Singh Thakur, learned counsel for the

respondents/defendants, submitted that the learned Courts

below have consistently recorded findings of fact regarding the

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solemnization of the marriage. This finding is supported by the

material on record and the document executed by the plaintiff.

There is no perversity in the findings recorded by learned Courts

below, and this Court should not interfere with a pure finding of

fact while deciding a regular second appeal. Hence, he prayed

that the present appeal be dismissed.

13. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

Substantial Questions of Law No.1:-

14. The defendants pleaded in para 3 of the written

statement that the marriage between plaintiff and defendant

No.1 was solemnised as per the custom of District Kullu known

as Riwaj-e-Aam. The parents of the plaintiff performed the

marriage and put a Thipu (Dupatta) on the head of defendant

No.1 before their deity, and in this way completed the marriage

of plaintiff and defendant No.1. Thereafter, plaintiff and his

parents gave a feast to the villagers and their relatives in their

house. It was laid down by this Court in Lachhmi vs Bali Ram

1997 (2) Shim. LC 145 that the custom has to be proved by citing

instances. It was observed:

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“11. It is well settled that custom is a fact which must be

pleaded and proved by authoritative pronouncements or

by instances in which it has been followed or by some

other evidence. It cannot be established by dialectics.

12. It is equally well settled that a custom to be legally

binding must be ancient, certain and invariable, and the

onus lies heavily upon a party setting up a special family

custom at variance with the general custom and personal

law of the parties, and it must be proved by clear and

cogent evidence.”

15. It was laid down by this Court in Sardar Mohammad v

Hosyara and others ILR 1988 HP 226, that a custom has to be

specifically pleaded and proved. It was observed:

“8. Now, it is settled law that a custom, to have the force

of law, must be ancient, certain, reasonable, continual,

peaceable, consistent, legal, moral and not opposed to

public policy. So far as custom as a rule of law applicable

to a particular or defined locality, that is, local custom, is

concerned, it must be shown also that it is compulsory in

the sense that it is a customary right vested in the

inhabitants of a particular locality and that it is not

optional to every person to follow it or not. It is also 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. The reason for this 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 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

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that evidence without knowing the nature of the custom

relied upon by the plaintiff (see: Kochan Kani Kunjuraman

Kani etc. v. Mathevan Kani Sankaran Kani and others, etc.,

AIR 1971 SC 1398)

16. This position was reiterated in Shakuntala & Ors. Vs.

Surinder Chand & Ors. AIR 2006 HP 108: 2006 SCC OnLine HP 8 ,

wherein it was observed:-

“19. In order to prove custom, it is necessary for the party

who alleges custom to prove it to be ancient, certain,

reasonable and having been followed constantly without

deviation. The custom has to be construed strictly. The

custom, as pointed out in Ramalakshmi Ammal v.

Sivanatha Perumal, (1872) 14 Moo Ind App 570, Siromani

and another v. Hemkumar and others, AIR 1968 SC 1299,

Harihar Prasad Singh and others v. Balmiki Prasad Singh

and others, AIR 1975 SC 733, must be proved by the party

who alleges such custom by clear and unambiguous

evidence as it is only by such evidence that Courts can be

assured of its existence and the fact that it possesses the

condition of antiquity and certainty on which alone their

legal title to recognition depends. It is a settled position of

law that wherever the evidence shows the custom alleged

was not allowed, uniformly, the custom cannot be said to

be proved. Mulla, in his Principles of Hindu Law,

observed:

"A custom derives its force from the fact that it has,

from long usage, obtained the force of law."

Mulla further observed :

"All that is necessary to prove is that the usage has

been acted upon in practice for such a long period

and with such invariability as to show that it has, by

common consent, been submitted to as the

established governing rule of a particular locality."

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17. This position was reiterated in Laxmibai v.

Bhagwantbuva, (2013) 4 SCC 97: 2013 SCC OnLine SC 101, wherein

it was observed at page 105:

“12. Custom is an established practice at variance with

the general law. A custom varying general law may be a

general, local, tribal or family custom. A general custom

includes a custom common to any considerable class of

persons. A custom which is applicable to a locality, tribe,

sect or a family is called a special custom. Custom is a

rule, which, in a particular family, a particular class,

community, or in a particular district, has, owing to

prolonged use, obtained the force of law. Custom has the

effect of modifying general personal law, but it does not

override statutory law, unless the custom is expressly

saved by it. Such custom must be ancient, uniform,

certain, continuous and compulsory. No custom is valid if

it is illegal, immoral, unreasonable or opposed to public

policy. He who relies upon custom varying general law

must plead and prove it. Custom must be established by

clear and unambiguous evidence.

13. In Surajmani Stella Kujur v. Durga Charan Hansdah

[(2001) 3 SCC 13: 2001 SCC (Cri) 1305: AIR 2001 SC 938], this

Court held that custom, being in derogation of a general

rule, is required to be construed strictly. A party relying

upon a custom is obliged to establish it by way of clear

and unambiguous evidence. (Vide Salekh Chand v. Satya

Gupta [(2008) 13 SCC 119] .)

14. A custom must be proved to be ancient, certain and

reasonable. The evidence adduced on behalf of the party

concerned must prove the alleged custom and the proof

must not be unsatisfactory and conflicting. A custom

cannot be extended by analogy or logical process, and it

also cannot be established by a priori method. Nothing

that the courts can take judicial notice of needs to be

proved. When a custom has been judicially recognised by

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the court, it passes into the law of the land and proof of it

becomes unnecessary under Section 57(1) of the Evidence

Act, 1872. Material customs must be proved properly and

satisfactorily, until the time that such a custom has, by

way of frequent proof in the court, become so notorious

that the courts take judicial notice of it. (See also Effuah

Amissah v. Effuah Krabah [(1936) 44 LW 73: AIR 1936 PC

147], T. Saraswathi Ammal v. Jagadambal [(1953) 1 SCC 362:

AIR 1953 SC 201], Ujagar Singh v. Jeo [AIR 1959 SC 1041] and

Siromani v. Hemkumar [AIR 1968 SC 1299] .)

15. In Ramalakshmi Ammal v. Sivanantha Perumal

Sethurayar [(1871-72) 14 MIA 570] it was held : (MIA pp.

585-86)

It is essential that special usage, which modifies the

ordinary law of succession, is ancient and invariable;

and it is further essential that such special usage is

established to be so, by way of clear and unambiguous

evidence. It is only by means of such evidence that

courts can be assured of their existence, and it is also

essential that they possess the conditions of antiquity

and certainty on the basis of which alone their legal

title to recognition depends.

16. In Salekh Chand [(2008) 13 SCC 119], this Court held as

under : (SCC pp. 130-131, paras 23 & 26-27)

“23. Where the proof of a custom rests upon a limited

number of instances of a comparatively recent date, the

court may hold the custom proved so as to bind the

parties to the suit and those claiming through and

under them….

***

26. … All that is necessary to prove is that the usage has

been acted upon in practice for such a long [Ed. : The word

“long” is emphasised in original as well.] period and with

such invariability as to show that it has, by common

consent, been submitted to as the established governing

rule of a particular locality.

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27. A custom may be proved by general evidence as to

its existence by members of the tribe or family who

would naturally be cognizant of its existence, and its

exercise without controversy….” (emphasis supplied)

17. In Bhimashya v. Janabi [(2006) 13 SCC 627] this Court

held : (SCC pp. 635-36, paras 25 & 28-29)

“25. A custom is a particular rule which has existed

either actually or presumptively from time

immemorial, and has obtained the force of law in a

particular locality, although contrary to or not

consistent with the general common law of the realm.

… it must be certain in respect of its nature generally

as well as in respect of the locality where it is alleged to

obtain and the persons whom it is alleged to affect.

***

28. Custom is authoritative, it stands in the place of

law, and regulates the conduct of men in the most

important concerns of life; fashion is arbitrary and

capricious, it decides in matters of trifling import;

manners are rational, they are the expressions of

moral feelings. Customs have more force in a simple

state of society.

29. Both practice and custom are general or particular

but the former is absolute, the latter relative; a

practice may be adopted by a number of persons

without reference to each other; but a custom is always

followed either by imitation or prescription; the

practice of gaming has always been followed by the

vicious part of society, but it is to be hoped for the

honour of man that it will never become a custom.”

(See also Ramkanya Bai v. Jagdish [(2011) 7 SCC 452 : (2011)

3 SCC (Civ) 736: AIR 2011 SC 3258] .)

18. In the present case, the defendants failed to plead

and prove any instances of custom. Defendant No.1 Deepa Devi

stated in para 4 of her proof affidavit (Ext.DA) that the parties

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were governed by the local agriculture custom of District Kullu.

They follow a local custom known as Riwaj-e-Aam in case of

marriages and death. The marriage between plaintiff and

defendant No.1 was solemnised as per the local custom, and the

parents of the plaintiff put a Thipu (Dupatta) on her head before

their deity and completed the marriage by organising a feast.

She has not cited any instance when any such marriage was held

and recognised by the society. Her witness, Nathu Ram, has also

not deposed that any such custom is prevalent in the area.

Learned Trial Court noticed that the burden was upon the

defendants to prove that customary marriage was prevalent in

the society, and no evidence was led to this effect. Learned

Appellate Court noticed question No. 16 of the tribal custom of

Kullu as under:

17. It may be relevant here to Question 16 of Tribal

Custom (Riwaj-e-Aam) of Kullu Sub Division, which

reads as follows:-

“Question 16. Ceremonies of marriage- with what

ceremonies at a marriage celebrated and what

ceremonies at a marriage celebrated and what

ceremonies make the marriage binding? Is it

customary to execute a writing to that effect?

Ans. (i) All the tribes reply that marriages in the

whole of the Sub-Division, excluding Waziri Lahaul

and Spiti, are performed by giving meals to the

marriage party. In very few cases amongst high-

classed Brahims, Khatris and Rajputs, Vedic rites

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are preformed but generally it is only completed

with Ganesh Puja. Amongst poorer people, it is only

performed by the execution of a deed. Agreement

deeds are usually executed in Tehsil Kullu, whereas

in Sub-Tehsil Seraj, Rupi and Lahaul, this custom

exists, but rarely.”

19. Learned Appellate Court held that Manikaran was

part of Rupi. No agreement was tendered in evidence, nor was

the same stated to have been executed. Testimony of Deepa Devi

revealed that Ganesh Pooja was performed. Therefore, the

marriage between the plaintiff and defendant No.1 was

solemnised as per the local custom known as Riwaj-e-Aam.

20. The findings recorded by the learned Appellate Court

cannot be sustained. Defendant No.1 never pleaded that the

Ganesh Pooja was performed. Her case was that the marriage

was solemnised by putting a Thipu (Dupatta) on her head before

the deity. The answer to question No.16 does not recognise any

such custom. She stated in her cross-examination that Ganesh

Pooja was solemnized, but this was never pleaded or deposed by

her in her examination-in-chief. Further, she specifically stated

that there was no Brahman at the time of Ganesh Pooja, which

makes her statement regarding the performance of Ganesh Pooja

highly doubtful. It was not suggested to the plaintiff in his cross-

examination that Ganesh Pooja was solemnised at the time of

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marriage between the plaintiff and defendant No.1. It was only

suggested to him that the parents of the plaintiff had put a Thipu

(Dupatta) on the head of defendant No.1 and accepted her as the

plaintiff’s wife. Thus, the findings recorded by the learned First

Appellate Court that the marriage was solemnised as per the

custom are contrary to the pleading and proof.

21. The learned Courts below proceeded on the basis that

plaintiff and defendant No.1 had resided together as husband

and wife, which suggested a valid marriage. Defendant No.1

stated that the love marriage was solemnised on 04.05.2005,

and she was turned out of her home in January 2006. Thus, as

per defendant No.1, she had resided in the house of the plaintiff

only for about 7-8 months. It was laid down by the Hon’ble

Supreme Court in Chowdamma v. Venkatappa, 2025 SCC OnLine

SC 1814, that a presumption arises regarding the legality of the

marriage between a man and a woman when they have lived

together for long years as husband and wife. It was observed:

“PRESUMPTION OF MARRIAGE

34. At this juncture, it becomes imperative to address

the question as to whether the relationship between the

deceased Dasabovi and the plaintiffs' mother can be

presumed to be a valid marital union, in the absence of

formal documentary proof.

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35. It would be beneficial to refer to Badri Prasad v.

Dy. Director of Consolidation (1978) 3 SCC 527, wherein this

Court held as follows:

“…. A strong presumption arises in favour of

wedlock where the partners have lived together for a

long spell as husband and wife. Although the

presumption is rebuttable, a heavy burden lies on him

who seeks to deprive the relationship of legal origin.

The law leans in favour of legitimacy and frowns upon

bastardy. …”

36. Similarly, in Andrahennedige Dinohamy v.

Wijetunge Liyanapatabendige Balahamy 1927 SCC OnLine

PC 51, wherein the Privy Council observed that:

“….where a man and woman are proved to have

lived together as man and wife, the law will presume,

unless the contrary be clearly proved, that they were

living together in consequence of a valid marriage and

not in a state of concubinage”.

37. In Mohabbat Ali Khan (Plaintiff) v. Mahomed

Ibrahim Khan (Defendants) 1929 SCC OnLine PC 21, the

Privy Council observed that:

“… The law presumes in favour of marriage and

against concubinage when a man and a woman have

cohabited continuously for a number of years. …”

38. The foregoing authorities indicate that the legal

position enunciates a presumption in favour of a

marriage where a man and woman have engaged in

prolonged and continuous cohabitation. Such a

presumption, though rebuttable in nature, can only be

displaced by unimpeachable evidence. Any circumstance

that weakens this presumption ought not to be ignored by

the Court. The burden lies heavily on the party seeking to

question the cohabitation and to deprive the relationship

of legal sanctity.”

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22. A similar view was taken in S.P.S. Balasubramanyam

(supra), Ranganath Parmeshwar Panditrao Mali (supra) and

Madan Mohan Singh (supra).

23. In the present case, the cohabitation between

plaintiff and defendant No.1, as per the case of defendant No.1,

was not long, which would justify the drawing of the

presumption.

24. In any case, there is no evidence of cohabitation

between the plaintiff and defendant No. 1. Plaintiff Kailash

Chand denied in his cross-examination that he and defendant

No.1 resided together as husband and wife. Jagan Nath (PW2)

also denied in his cross-examination that defendant No.1

resided as the plaintiff’s wife in his house. He specifically stated

that he had never seen defendant No.1 in the plaintiff’s house.

Nathu Ram (DW2) stated in his cross-examination that plaintiff

and defendant No.1 resided as husband and wife for about one

year, which is contrary to the admitted case of defendant No. 1

that she and the plaintiff had resided together for about 7-8

months. Thus, the evidence on record was insufficient to show a

long cohabitation between the plaintiff and defendant No.1, and

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the presumption could not have been drawn regarding the

marriage.

25. Therefore, the learned Court below erred in holding

that plaintiff and defendant No.1 were bound by the customary

law and the marriage between them was solemnised as per the

customary law. Hence, this substantial question of law is

answered accordingly.

Substantial Question of Law No.2:-

26. Nathu Ram (DW2) stated in his proof affidavit

(Ext.DB) that Deepa’s parents and some other person came as

there was some dispute between the plaintiff and defendant

No.1. The plaintiff’s parents called him (Nath Ram) for a

compromise. A compromise was effected between the parties.

Deepa stayed in the house of Kailash Chand as his wife and the

parents of Deepa and other persons left. He admitted in his

cross-examination that Khushi Ram, the uncle of the plaintiff,

had contested the election against him. He admitted that he had

not conducted any written proceedings regarding the dispute.

The cross-examination of this witness shows that the

relationship between him and the plaintiff’s uncle was strained.

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His statement that plaintiff and defendant No.1 were residing

together as husband and wife for more than one year shows that

he has improved upon the case of defendant No.1. Therefore, his

testimony could not have been accepted.

27. Badri Prakash (DW3) stated that an agreement dated

08.01.2006 was written at the instance of plaintiff Kailash

Chand, which was read over and explained to him, and he signed

the agreement in the presence of Satish Chand (Pradhan) and

Subhash Chand (witness). Subhash Chand (DW4) stated that the

agreement was written in the shop of Badri Prakash between 11

and 12. Significantly, it was Sunday on 08.01.2006, and there is

no explanation as to why the shop of Badri Prakash should be

open on a Sunday, and he should be carrying out the business of

stamp vending on a Sunday, which is a notified holiday.

28. The document (Ex. DW3/A) mentions that defendant

No.1 had left her matrimonial home once/twice, and the matter

was reported to Police Post PatliKuhal and Pradhan Gram

Panchayat Katrain. Therefore, the agreement was being

executed to ensure that defendant No.1 would be treated

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properly, and in case of maltreatment, defendant No.1 would

have a right to approach Pradhan, Gram Panchayat or the Police.

29. There is no material on record to corroborate the

contents of the document (Ext.DW3/A). Defendant No.1 did not

state in her affidavit that she had left her matrimonial home

once or twice due to some misunderstanding. She claimed that a

complaint of beating was lodged with the police in January,

2006. However, the agreement (Ext.DW3/A) mentions that the

complaint was made regarding leaving the matrimonial home.

Hence, the learned Courts below were not justified in relying

upon the undertaking to conclude the marriage.

30. In any case, it was rightly submitted on behalf of the

plaintiff/appellant that the marriage can be solemnised as per

the custom and not by the acknowledgement. Therefore, even if

the plaintiff had admitted that defendant No.1 is his wife, it

would not be sufficient to prove that the plaintiff and defendant

No.1 were legally married, especially when the custom pleaded

has not been proved. Hence, this substantial question of law is

answered accordingly.

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Substantial Question of Law No.3:-

31. Document (Ext.DW3/A) was an undertaking made by

the plaintiff and not an agreement executed between the parties.

An undertaking can amount to an admission, and there is

nothing in law that requires that the undertaking should be

signed by both parties. Therefore, this substantial question of

law is answered accordingly.

Substantial Question of Law No.4:-

32. Learned Trial Court held that the custom was not

proved but relied upon the presumption of marriage, which was

not attracted to the present case because of the absence of proof

of long cohabitation. Learned Appellate Court held that the

custom was proved, but the custom held to be proved by the

learned Appellate Court was never pleaded. Therefore, both the

learned Courts below misappreciated the evidence on record,

and the findings recorded by them are not sustainable. Hence,

the substantial question of law is answered accordingly.

Final Order:

33. In view of the above, the present appeal is allowed

and judgment and decree passed by learned Additional District

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Judge (Fast Track) Kullu, dated 29.12.2007 in Civil Appeal No.

35/2007 and the judgment and decree of the learned Civil Judge

(Senior Division) Kullu in Civil Suit No. 55 of 2006, decided on

19.07.2007 are ordered to be set aside and the suit of the plaintiff

is ordered to be decreed for declaration that defendant no. 1 is

not the legally wedded wife of the plaintiff and for permanent

prohibitoy injunction for restraining defendant no. 1 from

proclaiming herself to be the wife of the plaintiff and the

defendants from entering the plaintiffs house.

34. Hence, the present appeal stands disposed of and so

are the pending miscellaneous application(s), if any.

35. Records of the learned Courts below be returned

forthwith.

(Rakesh Kainthla)

Judge

9

th

April, 2026

(Nikita)