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{FA(MAT)No.108/2024}

2026:CGHC:20543-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

FA(MAT) No. 108 of 2024

{Arising out of judgment dated 3-1-2024 in Civil Suit No.117 A/2023 of

the Additional Principal Judge, Family Court, Janjgir, District Janjgir-

Champa}

Judgment reserved on: 23-4-2026

Judgment delivered on: 1-5-2026

Judgment (Full) uploaded on: 1-5-2026

Ramshankar Patel, S/o Madanmohan Patel, aged about 33 years, Mother

Smt. Amrika Bai, Caste Patel, R/o Village Sendari, Police Station Pamgarh,

District Janjgir-Champa, Chhattisgarh

(Applicant)

... Appellant

versus

Smt. Pushpalata Patel, aged about 34 years, Wife of Ramshankar Patel/

Daughter of Sadhuram Patel, Mother Name Smt. Parwati Patel, R/o

Jampani, Tahsil Kartala, Police Station Urga, District Korba, Chhattisgarh,

At present R/o Ward No.25, Bhathapara, Near Khokhara Miner, Behind

Dabari, Janjgir, District Janjgir-Champa, Chhattisgarh

(Non-Applicant)

... Respondent

For Appellant/Plaintiff:Mr. Sushobhit Singh, Advocate.

For Respondent/Defendant:Mr. Pawan Kumar Kashyap, Advocate.

Amicus Curiae :Mr. Rahul Tamaskar, Advocate.

Division Bench: -

Hon'ble Shri Sanjay K. Agrawal and

Hon'ble Shri Sanjay Kumar Jaiswal, JJ.

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{FA(MAT)No.108/2024}

C.A.V. Judgment

Sanjay K. Agrawal, J.

For sake of exposition, this Judgment is divided in following parts:-

S.No. Particulars Page Nos.

1.The Appeal 2

2.Quintessential Facts 3

3.Issues and Findings therein 4

4.Findings and Judgment of the Family Court 5

5.Submission on behalf of the Appellant/Plaintiff 5

6.Submission on behalf of the Respondent/Defendant 6

7.Points for Determination 6

8.Legal provision governing Void marriages 7

9.Legal Analysis and Reasoning 16

10.Point No.1 16

11.Point No.2 17

12.Issue of Permanent Alimony 21

13.Conclusion and Relief/Cost 22

The Appeal

1.Invoking the jurisdiction of this Court under Section 19(1) of the Family

Courts Act, 1984, the appellant herein/plaintiff has preferred this

appeal calling in question legality, validity and correctness of judgment

& decree dated 3-1-2024 passed by the Additional Principal Judge,

Family Court, Janjgir, District Janjgir-Champa in Civil Suit No.117

A/2023, by which his application for declaring the marriage as null and

void under Section 11 of the Hindu Marriage Act, 1955 (for short, ‘the

Act of 1955’), has been dismissed finding no merit.

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{FA(MAT)No.108/2024}

(For the sake of convenience, parties hereinafter will be referred

as per their status shown and ranking given in the civil suit before the

Family Court.)

Quintessential Facts

2.Marriage of the appellant herein/plaintiff was solemnized with the

respondent herein/defendant on 20-4-2018 in accordance with the

Hindu rites and customs. They firstly started living at Kusmunda and

they lived there up to February, 2020 and thereafter, from March, 2020

they lived at Bhathapara, Janjgir. The plaintiff’s mother – Amrika Bai

and the defendant’s mother – Parvati Patel both are real sisters as they

are born out of the marriage between Gokul Prasad and Urmila. It is

the case of the plaintiff/husband that the defendant/ wife after March,

2020, left her matrimonial home and started living with her father

pursuant to which societal meeting was called on 14-1-2022 in which

customary divorce was granted to them and cash of ₹ 75,000/- along

with gold and silver ornaments were given to the defendant/respondent

herein. It is the further case of the plaintiff that since the plaintiff’s

mother and the defendant’s mother both are real sisters born out of the

wedlock of Gokul Prasad and Urmila, their marriage comes within the

degree of prohibited relationship as defined under Section 5(iv) of the

Act of 1955 and therefore the plaintiff’s marriage with the defendant is

void ab initio and as such, decree under Section 11 of the Act of 1955 be

granted in his favour and a direction for return of cash of ₹ 75,000/-

along with gold and silver ornaments be also issued.

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{FA(MAT)No.108/2024}

3.The defendant/wife filed written statement admitting the relationship

between her mother and the plaintiff’s mother that they both are real

sisters and setup the plea of custom in paragraphs 2 and 4 of the written

statement, however, denied that their marriage comes within the degree

of prohibited relationship as defined under Section 5(iv) of the Act of

1955 and such a marriage between daughter and son of sister-sister,

brother-sister and maternal uncle-paternal aunt is prevalent in their

society which is called as Brahma marriage, it will not come within the

degree of prohibited relationship and the plaintiff knew from the

beginning that the defendant is daughter of his mother’s sister and

knowing fully well the said fact, marriage was entered between her and

the plaintiff and as such, the application for declaring the marriage void

be dismissed.

Issues and Findings therein

4.The Family Court framed following issues and answered the issues as

under: -

okn iz’u fu”d”kZ

01 & D;k vkosnd@;kfpdkdrkZ ,oa vukosfndk

@izR;FkhZ dk fookg izfrf”k) ukrsnkjh fMfxz;ksa ** gk¡ **

ds Hkhrj gS ? ;fn gka rks

¼d½ & D;k mHk;i{kksa ds e/; ‘kkflr #<+h@izFkk esa mu izfrf”k)

ukrsnkjh ds chp fookg vuqKkr gS ? ** izekf.kr **

02 & lgk;rk ,oa okn O;; ? ** dafMdk 27 ,oa 28 ds vuqlkj**

5.On behalf of the plaintiff, the plaintiff has examined himself

(Ramshankar Patel) as PW-1, Virendra Kumar Patel as PW-2 and

Kundelal Patel as PW-3, whereas, the defendant has examined herself

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{FA(MAT)No.108/2024}

(Pushpalata Patel) as DW-1, Basant Patel as DW-2, Dayaram Patel as

DW-3 and Dhanvendra Kumar Patel as DW-4.

Findings and Judgment of the Family Court

6.The Family Court by its impugned judgment & decree dated 3-1-2024

came to the conclusion that marriage between the plaintiff and the

defendant comes within the degree of prohibited relationship, however,

held that there is a custom prevalent in the Patel society in which

marriage between the parties who are within the degrees of prohibited

relationship is permissible and proceeded to reject the application

leading to filing of this appeal.

Submission on behalf of the Appellant/Plaintiff

7.Mr. Sushobhit Singh, learned counsel appearing on behalf of the

appellant herein/plaintiff, would submit that the Family Court after

having held that the plaintiff and the defendant both come within the

degree of prohibited relationship as defined under Section 3(g) of the

Act of 1955, ought to have granted decree declaring the marriage as null

and void, as there is no custom or usage governing each of them which

permits such a marriage between the two, as they come within the

degree of prohibited relationship under Section 3(g) of the Act of 1955.

He would further submit that mere ipsi dixit of the alleged custom

allegedly proved by Dhanvendra Kumar Patel (DW-4) would not

amount to pleading and proving of custom and therefore the impugned

judgment & decree be set aside and the marriage be declared null and

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{FA(MAT)No.108/2024}

void by granting decree in favour of the plaintiff/appellant herein and

consequently, the appeal be allowed along with cost.

Submission on behalf of the Respondent/Defendant

8.Mr. Pawan Kumar Kashyap, learned counsel appearing on behalf of the

respondent herein/defendant, would oppose the appeal and support the

impugned judgment & decree and submit that the Family Court has

taken a pragmatic view of the matter after taking into consideration the

evidence of plaintiff witness Kundelal Patel (PW-3) who happens to be

the former President of Patel Vikas Samiti, Korba, Head Office Korba

(Jhagraha) and and defendant witnesses Dayaram Patel (DW-3) and

Dhanvendra Kumar Patel (DW-4). He would further submit that such a

custom permitting such a marriage in between the children of cousin

sisters is permissible, therefore, the impugned judgment and decree

deserve to be upheld and the instant appeal deserves to be dismissed.

9.Points for Determination

1.Whether the marriage between the appellant/plaintiff and the

respondent/defendant falls within the meaning of the degree of

prohibited relationship as defined under Section 3(g) of the Act of

1955 and that contravenes Section 5(iv) of the Act of 1955?

2.Whether the custom or usage as defined under Section 3(a) of the

Act of 1955 governing each of them permits such kind of marriage

between them and whether the same has been pleaded and duly

proved?

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{FA(MAT)No.108/2024}

Legal provision governing Void marriages

10.Section 5 of the Act of 1955 provides Conditions for a Hindu marriage.

It states as under: -

“5. Conditions for a Hindu marriage.—A marriage may

be solemnized between any two Hindus, if the following

conditions are fulfilled, namely:—

(i) to (iii) xxxxxxxxx

(iv) the parties are not within the degrees of prohibited

relationship unless the custom or usage governing each of

them permits of a marriage between the two;

(v) xxxxxxxxx”

11.This Section lays down the conditions for a marriage to be solemnized

between two Hindus. If a marriage contravenes any of the conditions

specified in clauses (i), (iv) and (v) of this Section, the marriage is null

and void under Section 11 of the Act of 1955.

12.Section 11 of the Act of 1955 provides for consequence of contravention

of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the

Act of 1955. Section 11, which deals with Void marriages, states as

under: -

“11. Void marriages.—Any marriage solemnized after the

commencement of this Act shall be null and void and may, on

a petition presented by either party thereto against the other

party, be so declared by a decree of nullity if it contravenes

any one of the conditions specified in clauses (i), (iv) and (v)

of section 5.”

13.A careful perusal of the aforesaid provision would show that this section

declares that a marriage solemnised after the commencement of this Act

in contravention of any one of the conditions specified in clauses (i), (iv)

and (v) of Section 5 shall be null and void. Evidently, as per Section 11

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{FA(MAT)No.108/2024}

of the Act of 1955, three types of marriages are null and void. Firstly,

the marriage is void if either party has a spouse living at the time of the

marriage; secondly, if the parties are within the degrees of prohibited

relationship as defined in Section 3(g) of the Act of 1955 unless custom

or usage governing each of them permits such marriage; thirdly, if the

parties are sapindas as defined in Section 3(f) of the Act of 1955 unless

custom or usage governing each of them permits such marriage.

14.The Supreme Court in the matter of Krishnaveni Rai v. Pankaj Rai

and another

1

has also considered Section 11 of the Act of 1955 and

held that a marriage is void if the parties to the marriage are within the

degrees of prohibited relationship unless the custom or usage governing

each of them permits of such marriage, or if the parties are sapindas of

each other unless, again, the custom or usage governing each of them

permits marriage between the two.

15.Similarly, recently, in the matter of Sukhdev Singh v. Sukhbir

Kaur

2

, their Lordships of the Supreme Court have held that if Section 5

is read in conjunction with Section 11 of the Act of 1955 and if the

parties to the marriage are within the degrees of prohibited relationship,

such marriages are void, unless the custom or usage governing each of

them permits of a marriage between the two, such marriages are void ab

initio and such marriage does not exist at all in the eyes of the law.

16.The expression “degrees of prohibited relationship” has been defined in

Section 3(g) of the Act of 1955. It states as under: -

1(2020) 11 SCC 253

22025 SCC OnLine SC 299

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{FA(MAT)No.108/2024}

“(g) “degrees of prohibited relationship” – two persons are

said to be within the “degrees of prohibited relationship” –

(i) to (iii) xxxxxxxxx

(iv) if the two are brother and sister, uncle and niece, aunt

and nephew, or children of brother and sister or of two

brothers or of two sisters;”

17.A focused perusal of the definition contained in sub-clause (iv) of

Section 3(g) of the Act of 1955 would show that children of two brothers

or of two sisters are said to be within the degrees of prohibited

relationship, as in the instant case, mother of the plaintiff and mother of

the defendant both are sisters and accordingly, it is within the degree of

prohibited relationship which is not only pleaded by the plaintiff but

also admitted by the defendant in paragraph 4 of her written statement.

18.The term “custom or usage” employed in Section 5(iv) of the Act of 1955

has also been defined in Section 3(a) of the Act of 1955, which states as

under: -

“(a) the expressions “custom” and “usage” signify any rule

which, having been continuously and uniformly observed for

a long time, has obtained the force of law among Hindus in

any local area, tribe, community, group or family:

Provided that the rule is certain and unreasonable or

opposed to public policy; and

Provided further that in the case of a rule applicable

only to a family it has not been discontinued by the family;”

19.A careful reading of Section 3(a) of the Act of 1955 would show that

there are five ingredients of the aforesaid definition of “custom” and

“usage”, they are, firstly, it has been continuously and uniformly

observed for a long time; secondly, it has obtained the force of law

among Hindus in any local area, tribe, community, group or family;

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{FA(MAT)No.108/2024}

thirdly, it is certain; fourthly, it is not unreasonable or opposed to

public policy; and fifthly, in case of a rule applicable only to a family, it

has not been discontinued by the family.

20.As such, as noticed herein-above, marriage amongst the prohibited

degree of relationship amongst Hindus is prohibited under the Act of

1955 and any such marriage performed after the enforcement of the Act

of 1955 would not be a valid marriage. Such marriages can be accepted

as valid only when they are protected by any custom or usage existing

prior to the enforcement of the Act of 1955.

21.Consuetudo est lex (Custom is law) encapsulates the essence of

customary law, indicating its force as a binding rule when it gains

widespread acceptance and is perpetuated by continuous adherence.

22.According to Mayne’s Treatise on Hindu Law & Usage, 18

th

Edition,

page 48, the Sanskrit work for custom which is used by Manu and

Yajnavalkya is SADACHARA or the usage of virtuous men. Sadachara

has been defined by above text as under: - (p. 48)

“Sadachara.– The Sanskrit work for custom which is used

by Manu and Yajnavalkya is SADACHARA or the usage of

virtuous men. This term has been defined by Manu himself

as “the custom handed down in regular succession from time

immemorial among the four chief castes (VARNA) and the

mixed races of the country”.

3

So SADACHARA or approved

usage only means that it should not be contrary to Dharma.

No doubt, Gautama says: “the laws of countries, castes and

families which are not opposed to the sacred records have

also authority”.

4

Vijnanesvara and Kulluka, commenting

respectively on Yajnavalkya and Manu, state that the customs

should not be repugnant to the Vedas or the Smritis.

5

On this

point, there is a difference between the religious and the civil

3Manu, II, 18.

4Gaut., XI, 20.

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{FA(MAT)No.108/2024}

law in the Smritis and the general requirement that usage

should not be opposed to the Vedas and the Smritis is

confined to the rules relating to religious observances

(ACHARA) and does not apply to the rules of Civil Law

(VYAVAHARA) as to which, the texts of Narada, Brihaspati,

Katyayana, recognising the force and validity of custom, are

decisive.

6

All that Vijnanesvara and Kulluka must have meant

is that custom should not be immoral or criminal or opposed

to public policy, in which case, it will cease to be the conduct

of virtuous men.”

23.In the matter of Shiromani and others v. Hem Kumar and

others

7

, their Lordships of the Supreme Court have held that a custom

must be proved to be ancient, certain and reasonable if it is to be

recognised and acted upon by Courts of law; and being in derogation of

the general rules of law the custom must be construed strictly.

24.The Supreme Court in the matter of Harihar Prasad Singh and

others v. Balmiki Prasad Singh and others

8

has held that in the

first instance it is for the plaintiffs to prove the existence of the custom

and if they fail to do so they cannot succeed on the basis that the

defendants did not succeed in proving that the custom did not exist.

25.In the matter of Balusami Reddiar, minor by guardian,

Nagammal and others v. Balakrishna Reddiar, minor, and

others

9

, way back in the year 1956, the Madras High Court relying

upon its earlier decision in the matter of Deivanayaka Padayachi v.

Muthu Reddi

10

, which was of the year 1920, has held that a few

5Mit, on Yajn., I, 342, 343; Vidyarnavas’ trans., 415; Kulluka on Manu, VIII, 41; “The

Digest (Mitakshara) subordinates in more than one place the language of texts to

custom and approved usage” per Sir Robert Phillimore in Bhyah Ram Singh v

Bhyah Ugur Singh (1870) 13 MIA 373, 390.

6Brih., II, 18, 28; Nar., I, 40.

7AIR 1968 SC 1299

8(1975) 1 SCC 212

91956 SCC OnLine Mad 151 : AIR 1957 Mad 97

1033 Mad. 342

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{FA(MAT)No.108/2024}

instances in a community microscopic in nature, cannot constitute a

valid custom which a Court of law will recognise and enforce, and

observed as under: -

“We have not been shown that the alleged custom is either

ancient or certain or reasonable. A few instances in a

community microscopic in nature, cannot constitute a valid

custom which a Court of law will recognise and enforce. A

custom which is abhorrent to decency or morality, however

long practised and recognised by a particular community, can

find no kind of enforcement by a Court of law. Not one

decided case so far as we are aware, has approved of a custom

which is contrary to the sacred writings or which puts a

premium on incest and immorality.”

26.Further, way back in the year 1970, in the matter of K. Kamakshi v.

K. Mani

11

, where marriage of cousins was under challenge, the Madras

High Court while dealing with Section 5(iv) of the Act of 1955, has held

as under: -

“2.… The trial Court has failed to see that this evidence

was hardly sufficient to establish a custom of allowing

marriage in the community between parties within the

prohibited degrees. As held in Saraswathi Ammal v.

Jagadambal MANU/SC/0087/1953 : [1953] 4 SCR 939, the

correct approach to a case where a party seeks to prove a

custom is what was pointed out by the Privy Council in Abdul

Hussain Khan v. Mt. Bibi Sona Dero L.R. 45 IndAp 10 : 1917

34 M.L.J. 48 : A.I.R. 1917 P.C. 181. A party who sets up a

custom should invariably allege it in the pleading and prove

by cogent evidence as to the instances or facts over a

reasonably long period, which in effect make out the custom

pleaded. Short of this, a custom cannot be the result of a

process of approximation or analogy 01 deduction from other

customs prevalent among communities or sections of the

people other than that to which the parties in dispute belong.

A custom cannot be extended by analogy. It should be

established inductively, and not by a priori methods. What

period for proving instances should be taken would depend

upon the facts in each case. In this case there was no plea of

111970 SCC OnLine Mad 84 : (1970) 2 Mad LJ 477

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{FA(MAT)No.108/2024}

such a custom which the petitioner wanted to establish at the

trial. Further, from one single instance in 1918, no custom

could be inferred, much less established. Section 5(iv) of the

Hindu Marriage Act of 1955 is clear that a marriage may be

solemnised between any two Hindus only if, among other

things, the parties are not within the prohibited degrees of

relationship, unless the custom or usage governing each of

than permits of a marriage between the two. Evidence in this

case falls very short of establishing such a custom prior to

1955. Even thereafter, only two instances have been brought

to the notice of the Court which would again be insufficient to

make out a custom which would relax the condition imposed

by Section 5(iv).”

27.The Supreme Court in the matter of Rathnamma and others v.

Sujathamma and others

12

relying upon its earlier decision in the

matter of Salekh Chand (Dead) by LRs v. Satya Gupta and

others

13

has held that where custom is set up to prove that it is at

variance with the ordinary law, it has to be proved that it is not opposed

to public policy and that it is ancient, invariable, continuous, notorious,

not expressly forbidden by the legislature and not opposed to morality

or public policy. It has been observed by their Lordships of the

Supreme Court in Salekh Chand (supra) as under: -

“21.In Mooka Kone v. Ammakutti [AIR 1928 Mad 299] it

was held that where custom is set up to prove that it is at

variance with the ordinary law, it has to be proved that it is

not opposed to public policy and that it is ancient, invariable,

continuous, notorious, not expressly forbidden by the

legislature and not opposed to morality or public policy. It is

not disputed that even under the old Hindu Law, adoption

during the lifetime of a male issue was specifically prohibited.

In addition, I have observed that such an adoption even if

made would be contrary to the concept of adoption and the

purpose thereof, and unreasonable. Without entering into the

arena of controversy whether there was such a custom, it can

12(2019) 19 SCC 714

13(2008) 13 SCC 119

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{FA(MAT)No.108/2024}

be said that even if there was such a custom, the same was not

a valid custom.

22.It is incumbent on party setting up a custom to allege

and prove the custom on which he relies. Custom cannot be

extended by analogy. It must be established inductively and

not by a priori methods. Custom cannot be a matter of theory

but must always be a matter of fact and one custom cannot be

deduced from another. It is a well-established law that

custom cannot be enlarged by parity of reasoning.

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; but the

decision would not in that case be a satisfactory precedent if

in any future suit between other parties fuller evidence with

regard to the alleged custom should be forthcoming. A

judgment relating to the existence of a custom is admissible to

corroborate the evidence adduced to prove such custom in

another case. Where, however a custom is repeatedly brought

to the notice of the courts, the courts, may hold that the

custom was introduced into law without the necessity of proof

in each individual case.

24.Custom is a rule which in a particular family or a

particular class or community or in a particular district has

from long use, obtained the force of law. Coming to the facts

of the case PW 1 did not speak anything on the position either

of a local custom or of a custom or usage by the community;

PW 2, Murari Lal claimed to be witness of the ceremony of

adoption, he was brother-in-law of Jagannath, son of Pares

Ram who is said to have adopted Chandra Bhan. This witness

was 83 years old at the time of deposition in the court. He did

not speak a word either with regard to the local custom or the

custom of the community. PW 3 as observed by the lower

appellate court was only 43 years old at the time of his

deposition whereas the adoption had taken place around 60

years back. He has, of course, spoken about the custom but

that is not on his personal knowledge and this is only on the

information given by PW 2 Murari Lal. He himself did not

speak of such a custom. The evidence of the plaintiff was thus

insufficient to prove the usage or custom prevalent either in

the township of Hapur and around it or in the community of

Vaish.”

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{FA(MAT)No.108/2024}

28.The Delhi High Court in the matter of Sharad Dutt v. Kiran

14

, where

43 instances of marriage between parties falling under degrees of

prohibited relationship were cited out of which 13 were of prior to 1947

and 30 after partition, the Delhi High Court has held that in order to

prove a custom/usage, there should be clinching evidence before the

Court, and observed as under: -

“19.From the above, the first requirement to prove a

custom/usage is that there should be clinching evidence

before the Court to establish that the rule upon which the

alleged custom rests had been continuously and uniformly

observed for a long time and has obtained the force of law.

28.Marriage amongst the prohibited degree of relationship

amongst Hindus is prohibited under the Hindu Marriage Act.

Any such marriage performed after the enforcement of the

Hindu Marriage Act would not be a valid marriage. Such

marriages can be accepted as valid only when they are

protected by any custom or usage existing prior to the

enforcement of the Act. It is very clear that any marriage

prohibited by the Act cannot form the basis of a custom or

usage as it would, being prohibited, be an invalid marriage.

Thus out of the twelve aforesaid illustrations of marriage

proved on record, eleven are post Hindu Marriage Act and

only one is pre Hindu Marriage Act. One such illustration of

marriage between first cousins amongst the Panch-Jatia

Brahmins of District Jhang cannot, in my opinion, form

custom of marriages between first cousins amongst Panch-

Jatia Brahmins of Jhang. It would, in any opinion, not fulfil

the touchstone and the ingredients as detailed at pages 14 and

15 of this judgment.

37.The statements of witnesses on whom reliance has been

placed by the learned Counsel for the respondent to prove the

alleged custom do not show that they made the statements on

the basis of their personal knowledge based on certain facts

about the alleged custom. These witnesses do not give the

source/sources from which they gathered the relevant

information about the existence of the contended custom/

usage. No grounds have been given by them on the basis of

which the opinion is based. To prove a custom in the present

141997 SCC OnLine Del 837

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{FA(MAT)No.108/2024}

case, the burden was on the respondent to prove that the

alleged custom was being followed continuously, uniformly

and since long before 1947 in District Jhang (now in

Pakistan). None of these witnesses have stated that they had

themselves known the alleged custom having been

continuously and uniformly followed from before 1947. Nor

they say that they have derived knowledge from any person/

persons, who were alive prior to 1947.

42.Learned Counsel for the respondent also contended

that the petitioner-appellant cannot take advantage of his

own wrong. He says that the petitioner firstly married the

respondent fully well knowing that she was his first cousin

and then did not keep her as his wife and now he is claiming

nullity of marriage under Section 11 of the Act. According to

him, the petitioner-appellant should not now be allowed to

take the plea of nullity of marriage. From social point of view,

such contention may be found to have some force but when

on legal analysis the marriage between the parties is not

found to be valid, the petitioner-appellant cannot be refused

the prayer made by him in that respect. If the law does not

permit a marriage it is to be declared a nullity under Section

11 of the Act.”

Legal Analysis and Reasoning

29.Coming to the facts of the case in light of the aforesaid principles of law,

both the points for determination are being considered one by one.

Point No.1

30.It is not in dispute that the plaintiff’s mother and the defendant’s

mother both are real sisters, which has been pleaded by the plaintiff in

paragraph 2 of the plaint and admitted by the defendant in paragraph 4

of her written statement. As such, the plaintiff and the defendant are

children of two sisters and they clearly fall within the degree of

prohibited relationship as defined under Section 3(g)(iv) of the Act of

1955. The finding in this regard has rightly been recorded by the Family

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{FA(MAT)No.108/2024}

Court that the plaintiff and the defendant come within the degree of

prohibited relationship as defined under Section 3(g) of the Act of 1955

and we hereby affirm that finding. The first point is answered

accordingly.

Point No.2

31.It is the defendant/respondent herein who has set up the plea of custom

that marriage is permissible though the parties are within the degrees of

prohibited relationship and thus, it is her burden to establish that such

a marriage is permissible for which she had made following pleadings: -

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ds iq=&iqf=;ksa ds lkFk ,d nwljs dks ilan vkus ij fookg djus dk izFkk gSa ftls czEgk fookg

dgk tkrk gSa] tks izfrfl++) ukrsnkjh dh dksfV esa ugh ekuk tkrk gSaA vkosnd dks iwoZ ls gh

tkudkjh gSa fd vukosfndk ekSlh dh iq=h gSaA iVsy lekt esa cgu&cgu] HkkbZ&cgu]

ekek&QwQw ds yM+dh&yM+dk ls fookg djus dk izFkk izpyu esa gksus ds dkj.k vkosnd ,oa

mlds ekrk&firk }kjk ilan vkus ij fof/kor vukosfndk ds lkFk tkfr ,oa lkekftd jhfr

fjokt rFkk fgUnw /keZ ds vuqlkj vfXu ds le{k lkr Qsjk yxkdj fnukad 20-04-2018 dks

xzke cjikyh ftyk dksjck ¼N-x-½ esa lEiUu gqbZ gSa] rc ls vkosnd ,oa vukosfndk fookfgr

ifr&iRuh gSaA vkosnd dk vkosnu i= >qBs rF;ksa ij vk/kkfjr gksus ls lO;; fujLr djus

yk;d gSaA

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izrkfM+r djrk gSA

32.A careful perusal of the pleading made on behalf of the defendant would

show that the defendant has only pleaded that in Patel Samaj, marriage

between daughter and son of sister-sister, brother-sister and maternal

uncle-paternal aunt is prevalent and it is called as Brahma marriage, but

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{FA(MAT)No.108/2024}

it has not been pleaded that it is continuously and uniformly observed

for a very long time and that it has obtained the force of law among

Patel Samaj, whereas it is required to be pleaded and established that

such a custom permitting marriage between the parties of degrees of

prohibited relationship is prevalent in their society and they are

continuously and uniformly observing the said custom for a fairly long

time and that it has obtained the force of law and that they are protected

by the custom or usage existing prior to the enforcement of the Act of

1955 by observing the said custom for a long time in the Patel Samaj.

Such a pleading in terms of Section 3(a) of the Act of 1955 is absolutely

missing in the written statement filed by the defendant before the

Family Court. The only pleading made on behalf of the defendant is

that marriage between daughter and son of sister-sister, brother-sister

and maternal uncle-paternal aunt is prevalent and permissible in their

Samaj and it is called as Brahma marriage and alternatively, it was also

pleaded that such a marriage between the two like daughter and son of

brother-brother and sister-sister does not fall within the degree of

prohibited relationship.

33.In this regard, the statements of three defendant witnesses may be

noticed herein in which the Family Court has placed heavy reliance to

hold that in Patel Samaj, such a custom is prevalent, they are, Basant

Patel (DW-2), Dayaram Patel (DW-3) and Dhanvendra Kumar Patel

(DW-4).

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{FA(MAT)No.108/2024}

34.Basant Patel (DW-2), aged about 57 years, has stated that such a

marriage between the parties of degrees of prohibited relationship is

permissible in their society and it is branded as Brahma marriage. He

has further stated in paragraph 10 that the Patel Samaj does not

recognise the marriage between the parties who come within the

degrees of prohibited relationship and it is a societal offence. He has

also stated that marriage between the present plaintiff and the

defendant was permissible because they both are of different Gotras.

35.Similarly, next witness Dayaram Patel (DW-3), aged about 73 years, has

reiterated that such marriage does not come within the degree of

prohibited relationship. As such, except reiterating the facts as stated

by Basant Patel (DW-2), Dayaram Patel (DW-3) has not stated anything

further and he did not say that such a custom is being followed

continuously and uniformly for a long time and it has obtained the force

of law and they are protected by the custom or usage existing prior to

the enforcement of the Act of 1955. He has only stated about the

present status that such marriage is presently being made and it does

not come within the degree of prohibited relationship, which is of no

help to the defendant.

36.Last witness is Dhanvendra Kumar Patel (DW-4). He was the Member

of Patel Samaj of Chhattisgarh State. He has stated that marriage

between daughter and son of brother-sister, sister-sister, sister-brother

and maternal uncle-paternal aunt is permissible in their society and it

does not come within the degree of prohibited relationship. He has

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{FA(MAT)No.108/2024}

further stated that he himself has married the daughter of his mother’s

sister. He also did not say that such a custom is being followed

continuously and uniformly for a fairly long time having obtained the

force of law and was existing prior to the commencement of the Act of

1955. Therefore, his statement has no evidentiary value.

37.Consequently, on the basis of the aforesaid discussion, it is quite vivid

that pleading relating to custom in terms of Section 3(a) of the Act of

1955 is absolutely missing. There is no specific pleading that such a

custom is continuously and uniformly observed for a long time and it

has obtained the force of law among Patel samaj. Merely saying that at

present it is being followed would not be a valid marriage, as after

coming into force of the Act of 1955 with effect from 18-5-1955,

marriage between children of two sisters comes within the degree of

prohibited relationship defined under Section 3(g)(iv) of the Act of 1955

and consequently, it comes within the purview of Section 5(iv) of the Act

of 1955 and as such, the custom or usage governing each of them has

neither been specifically pleaded in the written statement nor duly

established by leading clinching evidence. Therefore, the Family Court

is absolutely unjustified in rejecting the application seeking declaration

of marriage between the parties as null and void after having held that

marriage between the plaintiff and the defendant comes within the

degree of prohibited relationship under Section 5(iv) of the Act of 1955.

The defendant has failed to competently plead and establish that such a

custom or usage governing each of them permits such a marriage

between the two and as such, they come within the degree of prohibited

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{FA(MAT)No.108/2024}

relationship. In our opinion, the impugned part of the decree holding

that such a custom or usage governing each of them permitting such a

marriage between the two in their society comes within the degree of

prohibited relationship, is neither pleaded nor established.

Consequently, this part of the decree is hereby set aside. Marriage

between plaintiff – Ramshankar Patel and deceased – Smt. Pushpalata

Patel solemnized on 20-4-2018 is declared void under Section 11 of the

Act of 1955, as it was performed in contravention to Section 5(iv) of the

Act of 1955.

Issue of Permanent Alimony

38.Now, the question of permanent alimony comes in.

39.The Supreme Court in Sukhdev Singh (supra) has considered the

issue as to whether a spouse of a marriage declared as void by a

competent Court under Section 11 of the Act of 1955 is entitled to claim

permanent alimony and maintenance under Section 25 of the Act of

1955 and their Lordships held in paragraph 28 that such a spouse is

entitled for permanent alimony by observing as under: -

“28. Accordingly, we answer the questions as follows:

a.A spouse whose marriage has been declared void under

Section 11 of the 1955 Act is entitled to seek permanent

alimony or maintenance from the other spouse by

invoking Section 25 of the 1955 Act. Whether such a

relief of permanent alimony can be granted or not

always depends on the facts of each case and the

conduct of the parties. The grant of relief under Section

25 is always discretionary; and

b. Even if a court comes to a prima facie conclusion that

the marriage between the parties is void or voidable,

pending the final disposal of the proceeding under the

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{FA(MAT)No.108/2024}

1955 Act, the court is not precluded from granting

maintenance pendente lite provided the conditions

mentioned in Section 24 are satisfied. While deciding

the prayer for interim relief under Section 24, the Court

will always take into consideration the conduct of the

party seeking the relief, as the grant of relief under

Section 24 is always discretionary.

40.Since there is no pleading with regard to permanent alimony and

affidavit has only been filed by the plaintiff, not by the defendant, in

light of the decision of the Supreme Court in the matter of Rajnesh v.

Neha and another

15

, instead of granting the aforesaid relief, we leave

it for the defendant to claim permanent alimony under Section 25 of the

Act of 1955 before the jurisdictional Family Court in accordance with

law, if so advised and it is made clear that we have not expressed any

opinion on the merits of the matter.

Conclusion and Relief/Cost

41.Marriage of the plaintiff namely, Ramshankar Patel and the deceased

namely, Smt. Pushpalata Patel solemnized on 20-4-2018 is declared

void invoking Section 11 of the Act of 1955, as it was solemnized in

contravention to Section 5(iv) of the Act of 1955. The issue of

permanent alimony is kept open to be raised by the defendant in terms

of the decision of the Supreme Court in Sukhdev Singh (supra), if so

advised, before the jurisdictional Family Court.

42.The appeal is allowed to the extent indicated herein-above. But there

will be no order as to cost(s) in this appeal.

15(2021) 2 SCC 324

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{FA(MAT)No.108/2024}

43.Before parting with record, we express our gratitude and appreciation to

Mr. Rahul Tamaskar, Advocate, who appeared as amicus curiae and in

short notice, has prepared the case and made submission.

Sd/- Sd/-

(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)

JUDGE JUDGE

Soma